IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT FRANCIS CASSIDY,

Plaintiff,

vs. Civil Action 2:12-cv-668

Judge Marbley

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

The decision of the Commissioner of Social Security was reversed

pursuant to Sentence 4 of 42 U.S.C. § 405(g) and the matter was remanded

for further consideration of the opinions of plaintiff’s treating

providers. Opinion and Order, Doc. No. 23. This matter is now before

the Court on plaintiff’s motion for an award of attorney’s fees pursuant

to the Equal Access to Justice Act, 28 U.S.C. § 2412. Motion for

Attorney Fees under the Equal Access to Justice Act (EAJA), Doc. No. 25

(“Motion for Fees”). There has been no response to the Motion for Fees.

Standard:

The Equal Access to Justice Act (“EAJA”) provides in pertinent part:

Except as otherwise specifically provided by statute, a court

shall award to a prevailing party other than the United States

fees and other expenses ... incurred by that party in any

civil action ... brought by or against the United States ... 

unless the court finds that the position of the United States

was substantially justified or that special circumstances make

an award unjust.

28 U.S.C. §2412(d)(1)(A). The position of the United States is

“substantially justified” for purposes of the EAJA 

if it is ‘justified in substance or in the main’ –- that is,

Case: 2:12-cv-00668-ALM-NMK Doc #: 26 Filed: 12/26/13 Page: 1 of 5 PAGEID #: <pageID>
justified to a degree that could satisfy a reasonable person.” 

... [A] position can be justified even though it is not

correct, and we believe it can be substantially (i.e., for the

most part) justified if a reasonable person could think it

correct, that is, if it has a reasonable basis in law and

fact. 

United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437,

440 (6th Cir. 1991) (citations omitted). The burden of showing substantial

justification rests with the Commissioner. Scarborough v. Principi, 541

U.S. 401, 414 (2004); United States v. True, 250 F.3d 410, 419 n.7 (6th

Cir. 2001). 

An award under the EAJA must be reasonable:

The amount of fees awarded under this subsection shall be

based upon prevailing market rates for the kind and quality of

the services furnished, except that . . . attorney fees shall

not be awarded in excess of $ 125 per hour unless the court

determines that an increase in the cost of living or a special

factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher

fee.

28 U.S.C. § 2412(d)(2)(A). The $125.00 “statutory rate is a ceiling and

not a floor.” Chipman v. Sec’y of Health & Human Servs., 781 F.2d 545,

547 (6th Cir. 1986). Therefore, a plaintiff bears the burden of

providing evidence sufficient to support a request for an award

calculated at a higher hourly rate. Bryant v. Comm’r of Soc. Sec., 578

F.3d 443, 450 (6th Cir. 2009) (citing Blum v. Stenson, 465 U.S. 886, 898

(1984)). To meet this burden, a plaintiff must “‘produce satisfactory

evidence – in addition to the attorney’s own affidavits – that the

requested rates are in line with those prevailing in the community for

similar services by lawyers of reasonably comparable skill, experience,

and reputation.” Id. (quoting Blum, 465 U.S. at 895 n.11). 

Once the district court has examined the prevailing market rate, it

must then consider whether a fee in excess of the $125.00 statutory cap

2

Case: 2:12-cv-00668-ALM-NMK Doc #: 26 Filed: 12/26/13 Page: 2 of 5 PAGEID #: <pageID>
is justified based on cost of living increases. 28 U.S.C. §

2412(d)(2)(A); Begley v. Sec’y of Health & Human Servs., 966 F.2d 196,

199-200 (6th Cir. 1992). “[E]ven though the cost of living has risen

since the enactment of the EAJA,” the decision whether or not to grant

such an adjustment is left to the sound discretion of the district court. 

Id. at 199-200. Simply submitting the Department of Labor’s Consumer

Price Index and arguing that the rate of inflation justifies an enhanced

hourly rate does not warrant an increase in the rate. Bryant, 578 F.3d

at 450.

Discussion: 

Plaintiff is a “prevailing party” under the EAJA because he secured

a Sentence 4 remand order. See Shalala v. Schaefer, 509 U.S. 292, 301-02

(1993). The Commissioner, who has not responded to the Motion for Fees,

has not established that the government’s litigation position was

substantially justified. The Court therefore concludes that the position

of the Commissioner was not substantially justified and that an award of

fees under the EAJA is warranted. See True, 250 F.3d at 419 n.7

(“[U]nder the EAJA it is the government’s burden to prove that its

position was substantially justified.”).

Having determined that attorneys’ fees should be awarded under the

EAJA, the Court must also determine what fee is reasonable. See 28

U.S.C. § 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)

(The plaintiff has the burden of proving that the fees requested under

the EAJA are in fact reasonable.). 

 

3

Case: 2:12-cv-00668-ALM-NMK Doc #: 26 Filed: 12/26/13 Page: 3 of 5 PAGEID #: <pageID>
Plaintiff seeks an award of attorney’s fees in the amount of

$5,865.60. He has established that his attorneys, Daniel S. Jones, Esq.,

and Charles E. Binder, Esq., expended a combined total of 32.50 hours

before this Court in connection with this case. Affirmation of Charles

E. Binder, PAGEID # 122-25. Plaintiff seeks compensation at the rate of

$180.48 per hour, as well as the $350.00 filing fee. Motion for Fees,

Plaintiff also refers to the $238.00 per hour mean billing rate for the

Greater Columbus area. See The Economics of Law Practice

inOhio , http://www.ohiobar.org/ General%20Resources/pub/

2010_Economics_of_Law_Practice_Study.pdf. Under the circumstances, the

Court concludes that plaintiff has provided satisfactory evidence that

the requested average hourly rate of $180.48 is in line with the rates

prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience and reputation. Cf. Delver v. Astrue, No.

1:06cv266, 2011 WL 4914963, at *3 n.2 (S.D. Ohio Sept. 9, 2011)

(suggesting a preference for “affidavits from other attorneys who

practice in federal court,” “publications that discuss the prevailing

market rate,” or “an affidavit from counsel setting forth . . . her

normal hourly rate”). 

The Court also concludes that the hours itemized by plaintiff’s

counsel are reasonable. 

Finally, plaintiff has assigned his rights and interests in any fee

award to his counsel. Retainer Agreement and Assignment, PAGEID # 127.

It is therefore RECOMMENDED that plaintiff’s unopposed Motion for

Fees, Doc. No. 25, be GRANTED and that plaintiff be awarded an attorney’s

fee under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the

4

Case: 2:12-cv-00668-ALM-NMK Doc #: 26 Filed: 12/26/13 Page: 4 of 5 PAGEID #: <pageID>
amount of $5,865.60, as well as the $350.00 filing fee. If it is

determined that plaintiff does not owe a debt to the United States, that

amount may be paid directly to plaintiff’s counsel in light of

plaintiff’s assignment to that effect. See Astrue v. Ratliff, 130 S.Ct.

2521, 2527 (2010). 

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections

must be filed within fourteen (14) days after being served with a copy

thereof. Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

December 26, 2013

5

Case: 2:12-cv-00668-ALM-NMK Doc #: 26 Filed: 12/26/13 Page: 5 of 5 PAGEID #: <pageID>